Failings in use of the Mental Capacity Act have been identified at the majority of social care services rated ‘inadequate’ by the Care Quality Commission, an analysis by Community Care has found.

Inspection reports published under the new inspection framework introduced by the regulator last October show that 29 of the 34 care homes and nursing homes rated ‘inadequate’ had failed to properly apply elements of the Mental Capacity Act 2005 (MCA) or the associated Deprivation of Liberty Safeguards (Dols). The most common concerns surrounded providers imposing restrictions on people’s care without legal authorisation, a lack of training and awareness of the legislation among staff – including some senior managers – and failures to make referrals to local authorities for Dols authorisations.

A leading expert on the Dols said that the findings reflected two issues – the failure of care providers to “get to grips” with the safeguards in the six years since they came into force and the CQC’s stronger focus on the MCA and Dols in the new inspection framework. Nursing home leaders acknowledged issues existed around the MCA and Dols implementation but accused the CQC of being “overly officious” in some cases, particularly as compliance with the Dols had been complicated by a Supreme Court ruling in March of last year (see box).

It also rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements.

The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. But it meant that, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.

Under the MCA, care providers should ensure decisions about a person’s care are made with their consent. This means that the person’s capacity to consent should be assessed if it is in doubt. Where a person is assessed as lacking capacity to make a decision, the provider must make a decision in the person’s best interests in line with the MCA code of practice.

The Dols should be applied where a person assessed as lacking capacity to consent to their care arrangements is likely to be deprived of their liberty. Where providers suspect care arrangements could constitute a deprivation of liberty, they must refer the case to their local authority to have it authorised under the Dols. The local authority must assess whether there is a deprivation of liberty and, if so, whether the care arrangements are in the person’s best interests and necessary to protect them from harm.

Key concerns flagged by CQC

Our analysis of the first batch of services to be rated ‘inadequate’ by the regulator since its introduction of a new ratings system in October last year found that inspectors had regularly raised concerns in three areas:

Restrictions on care without authorisation: The inspection reports flagged up a series of restrictions on people’s care that had been imposed without evidence that the MCA or Dols had been followed properly. At one home inspectors concluded that a resident had been “illegally deprived of their liberty” after records showed that no Dols authorisation had been requested despite records showing that the person was not allowed ‘to go out at all or accept any phone calls’.

Other restrictions imposed by providers without any evidence that residents’ capacity to consent to the restriction or any potential deprivation of liberty was considered included: the use of key-codes on doors to prevent people leaving certain areas, the used of bed rails on all beds – including, at one home, when people were being fed – and the locking of kitchens and dining room doors at certain times. At two homes concerns were raised that people’s medication was being administered covertly (by staff hiding it in their food or drink) without any evidence of this being a ‘best interests’ decision.

Staff training and awareness: Problems with staff training on the MCA and Dols were prominent in the inspection reports we analysed. The level and nature of training varied widely: Staff at some providers said they had received MCA and Dols training, others had received no training and some had only had computer-based Dols training. At one home only senior staff had received training on the MCA or Dols and inspectors found that “no thought had been given as to how to cascade this learning down”.

Even where staff had received training, the CQC found several examples where understanding and awareness of the legislation was still lacking. At one home the deputy manager told inspectors she had undertaken training but did not fully understand her responsibilities under the legislation. In a second service where training had been provided, two members of staff were unsure of what the MCA was and another told inspectors: “I’ve not heard of Dols”.

Lack of authorisations: CQC reports contained a number of examples where providers had failed to make applications to local authorities to authorise care arrangements that, in the inspector’s view, could constitute a potential deprivation of liberty. At one home staff said no-one was allowed to leave the home unsupervised, but the provider had not made any Dols applications. The CQC report said that the home’s registered manager “was not aware of any implications” of the Supreme Court’s landmark judgement. In two homes providers had made authorisations but failed to meet their duties to notify the CQC.

Reaction

Frank Ursell, chief executive of the Registered Nursing Home Association, said the Supreme Court’s ‘Cheshire West’ ruling had “moved the goal posts” on what providers had to consider regarding a potential deprivation of liberty. He said his organisation had issued guidance to members, including directives from the CQC, to help them apply the criteria set out in the Cheshire West ruling, but he remained concerned that the regulator was taking an “overly officious” approach to regulating the Dols and didn’t sufficiently recognise the practical issues facing providers.

“Take staff training. I have 39 staff. All 39 need to be trained in the principles of the Mental Capacity Act, and they are, but they don’t all have to have an intimate knowledge of Dols, because it doesn’t apply to them. The application [for a Dols authorisation] will be made by my manager, not the other 38/39 people so I’m not too sure, when you look at some of the reports, that CQC are always getting the right end of this. We’re all on a learning curve and trying to get to the right position,” he said.

“It’s a complicated area. We’re doing all of this on a shoestring because of the constraints on local authority budgets and we have the CQC coming in and being overly officious about one aspect of it [the Dols]. I’d be more comfortable if they focused on the principles of the MCA, so that we looked after people in a more appropriate way, rather than what they are doing, which is often pointing fingers at people over Dols. I’m not sure Dols has quite matured enough to where it needs to be [in the wake of the Supreme Court ruling].”

Lucy Series, research associate at Cardiff Law School, and a leading authority on the Dols said that the findings reflected the fact that care homes had “still not got to grips” with the Dols, six years on from the legislation coming into force.

“This may in part be because until the Supreme Court ruling in Cheshire West they were comparatively rarely used, and some areas saw barely any authorisations at all,” she said.

“Yet last year’s House of Lords report on the failure of health and social care practitioners to properly understand and apply the MCA and the Dols, and the Cheshire judgment, have renewed attention on the importance of care homes and hospitals understanding and applying the Dols. These developments may also reflect the renewed focus that CQC has been directing towards the MCA and the Dols under its new regulatory regime, where they occupy a much more prominent place.”

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